Wednesday, August 16, 2006

The U.S. 5th Circuit Court of Appeals yesterday issued a fascinating 2-1 decision upholding an Establishment Clause challenge to a monument on the grounds of the Harris County, Texas courthouse. The monument was originally erected in 1953 by a local Christian charity to honor William S. Mosher, a prominent Houston businessman and philanthropist. The top of the monument was a glass-topped display that included a Bible to memorialize Mosher's Christian faith. From 1988 to 1995 the Bible was removed from the monument, and the monument fell into disrepair. In 1995, John Devine was elected judge after campaigning on a platform of placing Christianity back into government. Devine and his court reporter solicited private donations to refurbish the monument, to restore a Bible to the display case, and to add neon lighting around the Bible. In Staley v. Harris County, Texas, (5th Cir., Aug. 15, 2006), the court held that the circumstances surrounding this refurbishment gave a predominately religious purpose to a monument that previously was primarily secular.

A dissent by Judge Jerry Smith argued that the majority has "enable[d] a candidate for political office to alter the character and constitutionality of a longstanding, privately-owned memorial merely by invoking religion and making benign alterations to the monument’s appearance.... This formerly unknown principle of constitutional law-- which perhaps should be crowned the 'Principle of Devine Intervention' --has serious doctrinal and practical consequences."